State v. Brown
| Decision Date | 27 August 2014 |
| Docket Number | No. 2 CA-CR 2013-0377,2 CA-CR 2013-0377 |
| Parties | THE STATE OF ARIZONA, Appellee, v. DANNY BROWN JR., Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in Pima County
The Honorable Scott Rash, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
By Scott A. Martin, Assistant Legal Defender, Tucson
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Brammer1 concurred.
¶1 Danny Brown appeals from his conviction and sentence for aggravated driving under the influence of an intoxicant (DUI) with a suspended driver's license. Specifically, Brown challenges the trial court's rulings denying his motions to dismiss two charges against him and to suppress evidence obtained after police violated his right to consult with an attorney. For the following reasons, we affirm the conviction and sentence.
¶2 We consider only the evidence before the trial court at the time of its suppression rulings, and view that evidence in the light most favorable to upholding those rulings. State v. Hausner, 230 Ariz. 60, ¶ 23, 280 P.3d 604, 614 (2012). At around 3:15 on a December morning, a Tucson police officer initiated a stop after observing a vehicle driven by Brown exceed the posted speed limit by fifteen miles per hour. The officer activated his emergency lights and siren, but Brown did not stop the vehicle immediately. Eventually, he made a "wide turn" and pulled over, striking and running over the curb with one tire.
¶3 When the officer approached the driver's side of the vehicle, he noticed Brown had "[a] strong odor of intoxicants; watery, bloodshot eyes; [and] slurred and thick-tongued speech." Despite repeated requests by the officer, Brown refused to provide his license, registration, or insurance, "bec[ame] increasingly irate,"and used racial slurs toward the officer. During this "rant," Brown said he wanted a lawyer and told the officer "[y]ou might as well just take me to jail." When Brown got out of the car, he "stagger[ed] and stumbl[ed]" and the officer had to "hold him up to keep him from falling over." Brown was arrested at 3:20 a.m. for failure to identify himself.
¶4 Police officers took Brown to the police substation and, at 4:10 a.m., read to him the admin per se/implied consent form.2 After Brown refused to give consent for a blood draw, an officer obtained a telephonic search warrant for a blood sample. Because Brown remained uncooperative and violent despite having been informed that officers had a search warrant, officers placed him in leg restraints and, after Brown submitted at around 5 a.m., two vials of his blood were drawn. Officers provided him with a vial for an independent test. Officers did not follow-up with Brown about his request for an attorney, and did not provide him the opportunity or means to call one.
¶5 Brown was charged with one count each of aggravated driving with a blood alcohol concentration (BAC) of .08 or more while his license was suspended (the "BAC" charge), aggravated driving under the influence of an intoxicant with a suspended license (the "DUI" charge), fleeing from a law enforcement vehicle, and aggravated assault on a peace officer.3 Before trial, he filed a motion to dismiss with prejudice the DUI and BAC counts and to suppress evidence obtained following the alleged violation of his right to counsel. After a hearing, the trial court denied bothmotions. It concluded that even if Brown had been denied the opportunity to consult with an attorney, there was "no nexus between the denial of the right to counsel and the drawing of the blood in this particular case."
¶6 Brown filed a motion for reconsideration, urging the trial court to revisit its ruling. The court, finding "good cause for further argument and reflection on [its] prior ruling," agreed to hear additional arguments and subsequently granted the motion to suppress evidence of Brown's refusal to submit to the blood test and the blood alcohol evidence obtained after Brown was denied an opportunity to speak with an attorney. The court denied Brown's motion to dismiss the DUI and BAC charges, concluding the violation of Brown's "right to counsel did not interfere with [his] ability to obtain exculpatory evidence because [he] had access to a separate test tube of his blood that [he] could have chosen to have independently tested." The state moved to dismiss the BAC charge and the court granted the motion.4
¶7 Following a jury trial, Brown was convicted of the DUI charge and sentenced to a 4.5-year term of imprisonment.5 Hetimely appealed, challenging the trial court's rulings on his motions to dismiss the DUI and BAC charges and suppress any evidence—including non-physical evidence—obtained after the violation of his right to counsel pursuant to Rule 6.1, Ariz. R. Crim. P. We have jurisdiction over Brown's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
¶8 Rule 6.1 provides that a suspect is entitled to the advice of counsel "as soon as feasible after [he] is taken into custody." This rule "recognizes the federal and state constitutional right to counsel." Kunzler v. Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987). But police may interfere with a suspect's access to an attorney if allowing such access would unduly delay the DUI investigation. Id. (). If police deny a DUI suspect the opportunity to exercise his right to counsel, the state must prove the police investigation would have been impeded had the suspect been allowed to consult with counsel at the time of his request. State v. Penney, 229 Ariz. 32, ¶ 13, 270 P.3d 859, 862 (App. 2012).
¶9 After an evidentiary hearing, the trial court found that Brown requested an attorney during the traffic stop. Although Brown did not "renew[] his request to speak with an attorney," police never sought to clarify his request or provide Brown with the opportunity to contact an attorney. The court found the state did not show that allowing Brown to confer with counsel after he had been detained at the substation would have interfered with the police investigation. Because neither Brown nor the state have challenged these findings on appeal, the only question we must address is whether the court's choice of remedy for the violation—suppression of the admin per se and blood-alcohol evidence—was error.
¶10 We review for an abuse of discretion the trial court's choice of remedy for the violation of a defendant's right to confer with counsel. State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307(App. 2000). We defer to the court with respect to its determination of facts but review de novo its legal conclusions. State v. Brown 233 Ariz. 153, ¶ 4, 310 P.3d 29, 32 (App. 2013). Whether evidence should have been excluded as a result of the deprivation of counsel is a "mixed question of fact and law" that we review de novo. State v. Rumsey, 225 Ariz. 374, 376-77, 238 P.3d 642, 644-45 (App. 2010), quoting State v. Hackman, 189 Ariz. 505, 508, 943 P.2d 865, 868 (App. 1997). We will affirm the court's ruling if it is correct for any reason. State v. Cañez, 202 Ariz. 133, ¶ 51, 42 P.3d 564, 582 (2002).
¶11 Brown argues the trial court erred by denying his motion to dismiss the DUI and BAC charges. In the alternative, he claims the court abused its discretion by "failing to suppress the non-blood test evidence collected after the violation of [Brown]'s right to counsel." In support of his arguments, Brown cites State v. Rosengren, 199 Ariz. 112, 14 P.3d 303 (App. 2000), which upheld the trial court's ruling suppressing all evidence obtained following a right-to-counsel violation. Rosengren was arrested for DUI following a single-vehicle accident that resulted in the death of his passenger. Id. ¶¶ 2, 5. Although paramedics at the scene did not detect signs of impairment, Rosengren admitted he had been drinking alcohol and was taken to the hospital so police could obtain a blood sample. Id. ¶¶ 2, 4. Rosengren asked to contact his father, an out-of-state attorney, but police refused, allowing him instead to contact a local attorney. Id. ¶ 4. Rosengren declined, and refused to give a blood sample. Id. After he performed a horizontal gaze nystagmus (HGN) test, officers arrested Rosengren for DUI. Id. ¶ 5.
¶12 An hour after his arrest, police obtained a telephonic search warrant and took two samples of Rosengren's blood. Id. ¶ 6. Rosengren subsequently was charged with manslaughter. Id. ¶¶ 6, 7. Claiming that his rights to due process and to consult with counsel had been violated, Rosengren filed a motion to dismiss the charge with prejudice. Id. ¶ 7. The trial court found police had violated his "right to consult with counsel of his choice in a situation where such would not interfere with the investigation" and suppressed the results of the blood and HGN tests, Rosengren's refusal to submit to the blood test, and all observations of and statements by Rosengren that occurred after he arrived at the hospital. Id. ¶ 7.
¶13 On appeal, we determined that "violation of the right to counsel and the concomitant due process right to gather independent evidence of sobriety requires outright dismissal" only when "the violation of right to counsel has 'foreclosed a fair trial by preventing [the defendant] from collecting exculpatory evidence no longer available.'" Id. ¶¶ 17, 19, quoting McNutt v. Superior Court, ...
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